ALJDEC decisions subject to certification as final

2017A-5715-CHC-ROC · Registrar of Contractors · 2018-11-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 18, 2018 and November 14, 2018 . APPEARANCES: Hector Yanez and Sandra Yanez, Complainants through interpreter Gabriella Contreras; Felix and Rosalba Alcoverde, John Holman, Esq., counsel for the Complainant; Frank Martinez, Respondent and Qualifying Party, Jose Gomez, Fidelz Garcia, Esq., counsel for the Respondent, Greg Johndrow, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson. _____________________________________________________________________ FINDING OF FACTS

The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, [“OAH”] for an evidentiary hearing regarding a Complaint against the Respondent, Lorigo Builder Contractor, LLC [“Lorigo”], filed with the Registrar of Contractors [“Registrar”] by HYSY Investment Inc., [“HYSY”] on November 14, 2017 claiming below standard workmanship.[1] Hearing on the matter commenced before the OAH on April 18, 2018. Complainant was unable to submit its entire case-in-chief during the time allotted for at the April 18, 2018 hearing. Therefore, the matter was continued until November 14, 2018 for Further Hearing. On November 14, 2018, further hearing on the matter was conducted and concluded. ROC Investigator Greg Johndrow testified that, in follow-up to the Complaint, he conducted a job site inspection [“JSI”] on December 8, 2017. Mr. Johndrow’s JSI notes[2] indicated that both parties were present, also in attendance for the complainant was Hector Yanez (husband) and Rosalba Alcoverde (translator representative). Present for the respondent were Frank Martinez and Jose Gomez. Present for the ROC was Manuel Bermudez translator for the assigned investigator. Mr. Johndrow noted that of the items identified in the Complaint, 13 issues were unsubstantiated. One issue was identified as requiring Lorigo’s attention and response:

Complaint Item 12: "Installed wrong size doors and windows” Investigator’s Observation: Substantiated. The building plans for doors and windows were not followed. There is no written change order between parties reflecting a change for the doors size or style, the respondent stated in his written response that the original plans call for side glass with the doors. The windows as specified in the building plans were never installed. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9- 108 Poor work The Registrar issued a corrective work order [CWO] to the Lorigo on December 27, 2017 as follows:[3] After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) ….You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 17, 2018. You are hereby directed to remedy the following violations by the appropriate means: "Installed wrong size doors and windows" The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. [emphasis in original]. The ROC Investigator, having not received a notice of compliance from the Respondent, a compliance inspection was conducted on January 31, 2018 by Investigator Johndrow. Mr. Johndrow determined that Lorigo was not in compliance with the CWO.[4] On February 1, 2018, the ROC issued its Citation against the Respondent Lorigo charging three alleged violations:[5] a. A violation of A.R.S. § 32-1154(A)(2)[6] b. A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3). c. A violation of A.R.S. § 32-1154(A)(22)[7] Complainant, Sandra Yanez, testified for HYSY that the parties contracted in writing on November 1, 2016 to build an office building.[8] Initially, HYSY contemplated and had a designer draw plans for a two-story building. Those plans were amended to have Lorigo build a single story building with four equally-sized separate offices.[9] Ms. Yanez testified that she hired a designer, J.A.C.A., to draw plans for her construction. J.A.C.A is not a licensed architect. She stated that J.A.C.A. oversaw the entire project for her. The J.A.C.A. drawing originally called for the installation of 4 single pane glass entry double- doors with sidelights. Her plans were changed when she learned that the City of Tucson Planning and Zoning required planters be installed across the front of the structure in order to meet the City’s permitting requirements. The plan drawings were changed to accommodate the construction and install of the planters. But, with the addition of the required planters [four of them ranging from feet to 10 feet in length], insufficient room was left to accommodate an installation of double doors with side-lights. At hearing, Ms. Yanez denied speaking to Lorigo’s owner and site manager, Frank Martinez and HYSY’s design consultant, regarding the impact of the required planters on reducing the size of door that could be hung. Ms. Yanez also denies a consultation with Mr. Martinez and the HYSY designer where it was discussed that City Code will not allow single pane glass in the building door entry, that double pane glass is required by code and that double pane glass would cost about $15,000.00 more to fabricate and install than the code violating single pane glass called for by the plans.[10] Ms. Yanez testified that Jose Gomez [a Lorigo employee] and her designer “made me sign changes under pressure because of the City’s landscaping requirements. Ms. Yanez’s personal office is located directly next to the construction site. She admits that she was present on the job site almost daily and did make observations of the ongoing project. Respondent’s qualifying member, Frank Martinez, testified that under the contract between the parties in this case,[11] the plans drawn by G.A.C.O. for HYSY provided for no construction of planters for the site.[12] He stated that the Tucson Division of Planning and Zoning requires the planters be constructed before permitting would be approved. A revised plan was drawn by G.A.C.O. which included the omitted planters and landscaping. Mr. Martinez observed that with the addition of the long planter walls to the job, now the double doors called for by the plan are too wide to install.[13] Mr. Martinez stated he spoke with Ms. Yanez and explained that an installation of 4 double doors with side-lights called for in the original plan would have resulted in the doors being only four feet wide.[14] Moreover, Mr. Martinez explained to Ms. Yanez, that the plans called for the doors to contain single pane glass. He explained that Tucson Code requires that glass be at least double pane in order to pass permit inspection. He explained the he told Ms. Yanez that no reputable manufacturer would fabricate exterior doors with single pane glass because local code prohibits single pane glass doors – they must be at least double- pane glass. He discussed with Ms. Yanez that double pane glass would be at least double the price that was bid for the single pane glass. He said that Ms. Yanez was tight on funds and could not afford to install double- paned doors. So, HYSY directed that the side-lights be deleted to reduce the increase in prices charged occasioned by having to use double paned glass. Mr. Martinez stated that with the deletion of the side-lights, he could install doors with double-panes without any upcharges.[15] Mr. Martinez stated that he did converse with Ms. Yanez about these matters and that she approved altering the doors sizes to accommodate the obstruction caused by building planters in front of part of the doorways. Mr. Martinez testified that because HYSY’s offices were next door to the job site, he regularly saw Ms. Yanez observing the work occurring on the jobsite. - CONCLUSIONS OF LAW The Registrar of Contractors has jurisdiction over Complaint No. 2017A-4793- CHC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). Lorigo Builder Contractor LLC, license number: 235374, is an Arizona ROC licensee. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014). Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). The preponderance of the evidence does not show that Respondent is unscrupulous, unqualified, or financially irresponsible. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. By a preponderance of the evidence it is shown that Respondent did not violate A.R.S. 32-1154.A.3 on this job by violating the workmanship standards as specified in A.A.C. R4-9-108. Disputed changes from the originally drawn plans for this job were occasioned by submitting to Respondent the Complainant’s poorly drafted plans which failed to reflect defects in design that would prohibit obtaining permitting from the City of Tucson. The plan changes that reflect the addition of several new planters in the building front also resulted in too little available space within which to install doors and side-lights as called for by the plan. Complainant Yanez was on the job site regularly throughout construction. That Ms. Yanez was not aware of the size and placement of her doors or absence of side-lights were clearly visible for nearly a year is not credible. That Complainant at hearing denied discussing the removal of the side-lights, the change of single pane glass for the code acceptable double-pane glass or the change from double- doors to a single glass door is also not credible since in her Complaint’s narrative Ms. Yanez admits that in reference to “Installed wrong size doors and windows” that Respondent “…did some changes that I was not notify [sic] in writing. Oral changes So [sic] I can sign paperwork.” By a preponderance of the evidence it is shown Respondent did not violate A.R.S. §32-1154.A.2, departure from plans. By a preponderance of the evidence it is shown Respondent did not violate A.R.S. 32-1154.A.3 on this job by violating the workmanship standards as specified in A.A.C. R4-9-108. By a preponderance of the evidence it is shown Respondent did not violate A.R.S 32-1154.A.23 by failing to comply with the written directives of the Registrar of Contractors. Upon these facts, the Complaint should be dismissed.

RECOMMENDED ORDER IT IS RECOMMENDED the Registrar enter and order dismissing this case. FURTHER IT IS RECOMMENDED, remanding this case to the Registrar for such further or other action as may be necessary and proper. Done this day, November 26, 2018.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative Judicial Notice is taken of the entirety of the ROC electronic and other files of the Registrar, including but not limited to the Registrar’s public website content. [2] Agency Record, “Jobsite Inspection Notes1rtf.” [3] Agency Record, “Rcc014 Corrective Work Order1.rtf.” [4] Agency Record, “Rcc104 Compliance Jobsite Inspection Notes1.rtf.” [5] Agency Record. “Rch424 Citation Multiple Charges WorkmanshipW221.rtf.” [6] Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [7] Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. [8] See, Agency Record, “Construction Contract” attached to “Intake Complaint Submittal1.pdf.” [9] See, Agency Record, “Insp Correspondence from Respondent1.pdf.” [10] It is noted with significance that the Complaint, signed by Sandra Yanez, inconsistently states that in reference to “Installed wrong size doors and windows” she states that Respondent “…did some changes that I was not notify [sic] in writing. Oral changes so I can sign paperwork.” [11] See, Agency Record, “Construction Contract” attached to “Intake Complaint Submittal1.pdf’, supra. [12] Exhibit R-2. [13] It was originally intended that there be four double doors – one for each office in the suite. [14] See, exhibit R-3. [15] Mr. Martinez indicated that although the contract required change orders be in writing, that previous written change orders were tendered, no change order was written in this case since there was not going to be any changes in the bid amounts under the contract.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826